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A three-judge panel of the U.S. Court of Appeals in Chicago (7th Cir.) today ordered the dismissal of an open…

Posted on May 24, 2012

A three-judge panel of the U.S. Court of Appeals in Chicago (7th Cir.) today ordered the dismissal of an open records-related lawsuit filed by the Chicago Tribune against the University of Illinois, ruling that it lacked jurisdiction to hear the case. Based on that defect, the court vacated a lower court’s March 2011 ruling that the university could not rely on student privacy protections found in the federal Family Education Rights and Privacy Act of 1974 (FERPA) to deny the newspaper's request for records relating to the university's preferential review process for applicants with “well-placed supporters.”

Since the parties sought the court's judgment on the issue of whether the university properly interpreted FERPA, they claimed the court had jurisdiction over the case pursuant to its authority to review claims "arising under" federal laws.

The dispute over the interpretation of the FERPA arose when the Tribune submitted an Illinois open records request for the names and addresses of the parents of the “clout-heavy applicants” who were designated for “Category I” review by the university, as well as the identities of all individuals who were involved with their applications. Since 2009, the newspaper has published a series of articles called "Clout Goes to College" about the shadow admissions system. The university’s president, a chancellor, and seven of the nine trustees have since resigned in the wake of the revelations.

The university claimed that since the FERPA provides that no federal funds may be granted to educational institutions that release — without authorization — students' education records or personally identifiable information, it could be used to withhold records under a state law exemption for “[i]nformation specifically prohibited from disclosure by federal . . . law.”

The lower court rejected that interpretation, ruling that since the FERPA does not “specifically prohibit” the disclosure of student information, but only provides instructions for when the secretary of education may grant federal money, it does not qualify as a basis for withholding under the exemption.

However, the appeals court vacated this ruling, pointing to the fact that the party that originally initiated the lawsuit — the Tribune — based its claim for the records only under the Illinois open records law, and could not ask a federal court to rule on the federal defense it anticipated the university would raise in court.

“[T]he state court is the right forum to determine the validity of whatever defenses the University presents to the Tribune's request,” wrote Chief Judge Frank Easterbrook for the court. While the court agreed that a lawsuit seeking clarification on the "pure" dispute over the meaning of the FERPA belonged in federal court, it stated that only the federal government could bring such a suit.

In vacating the ruling, the panel stated that "the Tribune’s request for the information does not depend on even a smidgeon of federal law."

"We're not giving up these records," said Sam Skinner, an attorney for the university, adding that he hopes the Tribune will drop the case. He explained that the parties also filed a related state case in the Sangamon County, Ill., circuit court in 2009, but those proceedings have idled.

The Reporters Committee for Freedom of the Press and the Student Press Law Center — joined by 21 media companies and organizations — submitted a friend-of-the-court brief in the case in support of the Tribune in August 2011.

The appeals court declined to “express any opinion on whether the information the Tribune seeks relates to student records within the meaning of the [FERPA]."

James Klenk, who represented the Tribune, was not immediately available for comment.

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